‘This is the time for resignations’: Group of 50 lawyers calls for overhaul of immigration detention board

A group of 50 lawyersiscalling for the mass resignation of the civil servants who determine the fates of immigration detainees in Canada.

In an open letter to federal immigration authorities, the lawyers describe the quasi-judicial body that conducts immigration detention hearings as a “broken institution that cannot be trusted to make decisions about people’s freedom.”

Many immigration detainees are held at the Maplehurst Correctional Complex in Milton, a maximum-security jail, where they are treated the same as sentenced criminals and those awaiting trial. (Anne-Marie Jackson / Toronto Star file photo)

The letter, which was spearheaded by immigration lawyers Clifford McCarten and Simon Wallace, comes on the heels of a scathing audit of long-term detention cases, released Friday, which identified systemic problems with how hearings have been conducted by members of a division of the Immigration and Refugee Board.

Immigration detainees are held indefinitely, often in maximum-security jails, by the Canada Border Services Agency. The CBSA has the authority to detain non-citizens deemed a danger to the public or unlikely to appear for their deportation, or if their identity is in doubt. The Immigration and Refugee Board conducts hearings to review each detention after the first 48 hours, after seven days and every 30 days thereafter.

The average length of detention is a couple of weeks, though many detainees spend months or years behind bars, often in conditions meant for a criminal population.

The external audit — ordered last fall following a Star investigation and several high-profile court decisions castigating immigration authorities for what has been described as a “Kafkaesque” system — reviewed a random sample of 20 cases in which detention had gone on for more than 100 days.

The audit identified many of the issues highlighted for several years by lawyers, activists and detainees themselves, including the lack of procedural fairness for detainees; inaccuracies and inconsistencies in factual findings; unquestioning deference to the CBSA’s evidence; over-reliance on previous decisions; a lack of appreciation for detainees’ mental health; and, in general, a system that is stacked against detainees.

“The audit details how the (Immigration Division) has justified, legitimized, and caused one of the most serious and ongoing human rights crises in this country,” the lawyers’ letter reads. “We have no confidence in the ID’s ability to reconstitute itself with the same actors fumbling their responsibility to decide people’s liberty. This is not the time for more workshops or a graduated implementation of recommendations … This is the time for resignations.”

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The Immigration Division is the branch of the Immigration and Refugee Board that handles immigration detention hearings. Its adjudicators are government-appointed, independent decision makers who preside over hearings as a judge would in a court, but they are not required to have any legal training. A representative of the Canada Border Services Agency, who is also not a lawyer, acts as a kind of prosecutor of the case. Detainees, meanwhile, are often unrepresented, particularly in Ontario, where last year detainees represented themselves in 62 per cent of cases, the audit found.

In their letter, the lawyers call on the Immigration and Refugee Board to replace existing adjudicators and require new ones to have legal training.

“The buck must stop somewhere, and those who are complicit in this mass violation of basic rights must be held to account,” the letter reads.

In a statement released with the audit on Friday, the Immigration and Refugee Board’s former chairperson Paul Aterman — who was replaced this week by Richard Wex — said the board agreed with the auditor’s recommendations, which included, among other things, increased training for board members and greater management oversight, particularly for cases that drag on for months or years.

In an emailed statement in response to a request to comment for this story, Immigration and Refugee Board spokesperson Line Guibert-Wolff said the board, including its new chairperson, is “actively seized” by the issues raised by the audit and takes them seriously. Guibert-Wolff said that Wex, “in an immediate first step,” directed the Immigration Division to establish a “dedicated team” to review the cases of immigration detainees who have been held for more than a year and to “provide recommendations regarding their detention in the coming weeks.”

The dozens of lawyers behind the letter say the problems with the Immigration Division cannot be solved by more training or oversight. They argue it is irrevocably broken and its members are “not fit for the job of reform.”

“The debt is now too large to be ignored,” the letter reads. “These concerns are not trivial: they involve the loss of people’s freedom, dignity, minds and lives.”

Brendan Kennedy is a Toronto-based investigative reporter. Follow him on Twitter: @BKennedyStar